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[ Engrossed ] | [ Enrolled ] | [ House Amendment 001 ] |
[ Senate Amendment 001 ] |
92_SB0993 LRB9208130DJmg 1 AN ACT in relation to child support. 2 Be it enacted by the People of the State of Illinois, 3 represented in the General Assembly: 4 Section 5. The Illinois Public Aid Code is amended by 5 changing Section 10-16.5 as follows: 6 (305 ILCS 5/10-16.5) 7 Sec. 10-16.5. Interest on support obligations. A 8 support obligation, or any portion of a support obligation, 9 which becomes due and remains unpaid for 30 days or more 10 shall accrue interest at the rate of 9% per annum. Interest 11 on support obligations shall be calculated as simple 12 interest. Interest amounts shall be posted on a monthly 13 basis and maintained by each obligation as a separate amount 14 payable to the payee. Current and accrued amount dues 15 transferred to an arrearage balance as well as any arrearage 16 transferred to a new established balance shall accrue 17 interest on the balance of the unpaid arrearage amount. 18 Terms of payment schedules on arrearage amounts, as a result 19 of a court order, shall not affect interest calculations. 20 Accrued interest on support obligations shall not be 21 transferred to established balances. Notice of accrued 22 interest amounts must be sent to all parties at least 23 annually. 24 (Source: P.A. 91-397, eff. 1-1-00.) 25 Section 10. The Illinois Marriage and Dissolution of 26 Marriage Act is amended by changing Section 505 as follows: 27 (750 ILCS 5/505) (from Ch. 40, par. 505) 28 Sec. 505. Child support; contempt; penalties. 29 (a) In a proceeding for dissolution of marriage, legal -2- LRB9208130DJmg 1 separation, declaration of invalidity of marriage, a 2 proceeding for child support following dissolution of the 3 marriage by a court which lacked personal jurisdiction over 4 the absent spouse, a proceeding for modification of a 5 previous order for child support under Section 510 of this 6 Act, or any proceeding authorized under Section 501 or 601 of 7 this Act, the court may order either or both parents owing a 8 duty of support to a child of the marriage to pay an amount 9 reasonable and necessary for his support, without regard to 10 marital misconduct. The duty of support owed to a minor 11 child includes the obligation to provide for the reasonable 12 and necessary physical, mental and emotional health needs of 13 the child. 14 (1) The Court shall determine the minimum amount of 15 support by using the following guidelines: 16 Number of Children Percent of Supporting Party's 17 Net Income 18 1 20% 19 2 25% 20 3 32% 21 4 40% 22 5 45% 23 6 or more 50% 24 (2) The above guidelines shall be applied in each 25 case unless the court makes a finding that application of 26 the guidelines would be inappropriate, after considering 27 the best interests of the child in light of evidence 28 including but not limited to one or more of the following 29 relevant factors: 30 (a) the financial resources and needs of the 31 child; 32 (b) the financial resources and needs of the 33 custodial parent; 34 (c) the standard of living the child would -3- LRB9208130DJmg 1 have enjoyed had the marriage not been dissolved; 2 (d) the physical and emotional condition of 3 the child, and his educational needs; and 4 (e) the financial resources and needs of the 5 non-custodial parent. 6 If the court deviates from the guidelines, the 7 court's finding shall state the amount of support that 8 would have been required under the guidelines, if 9 determinable. The court shall include the reason or 10 reasons for the variance from the guidelines. 11 (3) "Net income" is defined as the total of all 12 income from all sources, minus the following deductions: 13 (a) Federal income tax (properly calculated 14 withholding or estimated payments); 15 (b) State income tax (properly calculated 16 withholding or estimated payments); 17 (c) Social Security (FICA payments); 18 (d) Mandatory retirement contributions 19 required by law or as a condition of employment; 20 (e) Union dues; 21 (f) Dependent and individual 22 health/hospitalization insurance premiums; 23 (g) Prior obligations of support or 24 maintenance actually paid pursuant to a court order; 25 (h) Expenditures for repayment of debts that 26 represent reasonable and necessary expenses for the 27 production of income, medical expenditures necessary 28 to preserve life or health, reasonable expenditures 29 for the benefit of the child and the other parent, 30 exclusive of gifts. The court shall reduce net 31 income in determining the minimum amount of support 32 to be ordered only for the period that such payments 33 are due and shall enter an order containing 34 provisions for its self-executing modification upon -4- LRB9208130DJmg 1 termination of such payment period. 2 (4) In cases where the court order provides for 3 health/hospitalization insurance coverage pursuant to 4 Section 505.2 of this Act, the premiums for that 5 insurance, or that portion of the premiums for which the 6 supporting party is responsible in the case of insurance 7 provided through an employer's health insurance plan 8 where the employer pays a portion of the premiums, shall 9 be subtracted from net income in determining the minimum 10 amount of support to be ordered. 11 (4.5) In a proceeding for child support following 12 dissolution of the marriage by a court that lacked 13 personal jurisdiction over the absent spouse, and in 14 which the court is requiring payment of support for the 15 period before the date an order for current support is 16 entered, there is a rebuttable presumption that the 17 supporting party's net income for the prior period was 18 the same as his or her net income at the time the order 19 for current support is entered. 20 (5) If the net income cannot be determined because 21 of default or any other reason, the court shall order 22 support in an amount considered reasonable in the 23 particular case. The final order in all cases shall 24 state the support level in dollar amounts. However, if 25 the court finds that the child support amount cannot be 26 expressed exclusively as a dollar amount because all or a 27 portion of the payor's net income is uncertain as to 28 source, time of payment, or amount, the court may order a 29 percentage amount of support in addition to a specific 30 dollar amount and enter such other orders as may be 31 necessary to determine and enforce, on a timely basis, 32 the applicable support ordered. 33 (6) If (i) the non-custodial parent was properly 34 served with a request for discovery of financial -5- LRB9208130DJmg 1 information relating to the non-custodial parent's 2 ability to provide child support, (ii) the non-custodial 3 parent failed to comply with the request, despite having 4 been ordered to do so by the court, and (iii) the 5 non-custodial parent is not present at the hearing to 6 determine support despite having received proper notice, 7 then any relevant financial information concerning the 8 non-custodial parent's ability to provide child support 9 that was obtained pursuant to subpoena and proper notice 10 shall be admitted into evidence without the need to 11 establish any further foundation for its admission. 12 (a-5) In an action to enforce an order for support based 13 on the respondent's failure to make support payments as 14 required by the order, notice of proceedings to hold the 15 respondent in contempt for that failure may be served on the 16 respondent by personal service or by regular mail addressed 17 to the respondent's last known address. The respondent's 18 last known address may be determined from records of the 19 clerk of the court, from the Federal Case Registry of Child 20 Support Orders, or by any other reasonable means. 21 (b) Failure of either parent to comply with an order to 22 pay support shall be punishable as in other cases of 23 contempt. In addition to other penalties provided by law the 24 Court may, after finding the parent guilty of contempt, order 25 that the parent be: 26 (1) placed on probation with such conditions of 27 probation as the Court deems advisable; 28 (2) sentenced to periodic imprisonment for a period 29 not to exceed 6 months; provided, however, that the Court 30 may permit the parent to be released for periods of time 31 during the day or night to: 32 (A) work; or 33 (B) conduct a business or other self-employed 34 occupation. -6- LRB9208130DJmg 1 The Court may further order any part or all of the 2 earnings of a parent during a sentence of periodic 3 imprisonment paid to the Clerk of the Circuit Court or to the 4 parent having custody or to the guardian having custody of 5 the minor children of the sentenced parent for the support of 6 said minor children until further order of the Court. 7 If there is a unity of interest and ownership sufficient 8 to render no financial separation between a non-custodial 9 parent and another person or persons or business entity, the 10 court may pierce the ownership veil of the person, persons, 11 or business entity to discover assets of the non-custodial 12 parent held in the name of that person, those persons, or 13 that business entity. The following circumstances are 14 sufficient to authorize a court to order discovery of the 15 assets of a person, persons, or business entity and to compel 16 the application of any discovered assets toward payment on 17 the judgment for support: 18 (1) the non-custodial parent and the person, 19 persons, or business entity maintain records together. 20 (2) the non-custodial parent and the person, 21 persons, or business entity fail to maintain an arms 22 length relationship between themselves with regard to any 23 assets. 24 (3) the non-custodial parent transfers assets to 25 the person, persons, or business entity with the intent 26 to perpetrate a fraud on the custodial parent. 27 With respect to assets which are real property, no order 28 entered under this paragraph shall affect the rights of bona 29 fide purchasers, mortgagees, judgment creditors, or other 30 lien holders who acquire their interests in the property 31 prior to the time a notice of lis pendens pursuant to the 32 Code of Civil Procedure or a copy of the order is placed of 33 record in the office of the recorder of deeds for the county 34 in which the real property is located. -7- LRB9208130DJmg 1 The court may also order in cases where the parent is 90 2 days or more delinquent in payment of support or has been 3 adjudicated in arrears in an amount equal to 90 days 4 obligation or more, that the parent's Illinois driving 5 privileges be suspended until the court determines that the 6 parent is in compliance with the order of support. The court 7 may also order that the parent be issued a family financial 8 responsibility driving permit that would allow limited 9 driving privileges for employment and medical purposes in 10 accordance with Section 7-702.1 of the Illinois Vehicle Code. 11 The clerk of the circuit court shall certify the order 12 suspending the driving privileges of the parent or granting 13 the issuance of a family financial responsibility driving 14 permit to the Secretary of State on forms prescribed by the 15 Secretary. Upon receipt of the authenticated documents, the 16 Secretary of State shall suspend the parent's driving 17 privileges until further order of the court and shall, if 18 ordered by the court, subject to the provisions of Section 19 7-702.1 of the Illinois Vehicle Code, issue a family 20 financial responsibility driving permit to the parent. 21 In addition to the penalties or punishment that may be 22 imposed under this Section, any person whose conduct 23 constitutes a violation of Section 15 of the Non-Support 24 Punishment Act may be prosecuted under that Act, and a person 25 convicted under that Act may be sentenced in accordance with 26 that Act. The sentence may include but need not be limited 27 to a requirement that the person perform community service 28 under Section 50 of that Act or participate in a work 29 alternative program under Section 50 of that Act. A person 30 may not be required to participate in a work alternative 31 program under Section 50 of that Act if the person is 32 currently participating in a work program pursuant to Section 33 505.1 of this Act. 34 A support obligation, or any portion of a support -8- LRB9208130DJmg 1 obligation, which becomes due and remains unpaid for 30 days 2 or more shall accrue interest at the rate of 9% per annum. 3 Interest on support obligations shall be calculated as simple 4 interest. Interest amounts shall be posted on a monthly 5 basis and maintained by each obligation as a separate amount 6 payable to the payee. Current and accrued amount dues 7 transferred to an arrearage balance as well as any arrearage 8 transferred to a new established balance shall accrue 9 interest on the balance of the unpaid arrearage amount. 10 Terms of payment schedules on arrearage amounts, as a result 11 of a court order, shall not affect interest calculations. 12 Accrued interest on support obligations shall not be 13 transferred to established balances. Notice of accrued 14 interest amounts must be sent to all parties at least 15 annually. 16 (c) A one-time charge of 20% is imposable upon the 17 amount of past-due child support owed on July 1, 1988 which 18 has accrued under a support order entered by the court. The 19 charge shall be imposed in accordance with the provisions of 20 Section 10-21 of the Illinois Public Aid Code and shall be 21 enforced by the court upon petition. 22 (d) Any new or existing support order entered by the 23 court under this Section shall be deemed to be a series of 24 judgments against the person obligated to pay support 25 thereunder, each such judgment to be in the amount of each 26 payment or installment of support and each such judgment to 27 be deemed entered as of the date the corresponding payment or 28 installment becomes due under the terms of the support order. 29 Each such judgment shall have the full force, effect and 30 attributes of any other judgment of this State, including the 31 ability to be enforced. A lien arises by operation of law 32 against the real and personal property of the noncustodial 33 parent for each installment of overdue support owed by the 34 noncustodial parent. -9- LRB9208130DJmg 1 (e) When child support is to be paid through the clerk 2 of the court in a county of 1,000,000 inhabitants or less, 3 the order shall direct the obligor to pay to the clerk, in 4 addition to the child support payments, all fees imposed by 5 the county board under paragraph (3) of subsection (u) of 6 Section 27.1 of the Clerks of Courts Act. Unless paid in 7 cash or pursuant to an order for withholding, the payment of 8 the fee shall be by a separate instrument from the support 9 payment and shall be made to the order of the Clerk. 10 (f) All orders for support, when entered or modified, 11 shall include a provision requiring the obligor to notify the 12 court and, in cases in which a party is receiving child and 13 spouse services under Article X of the Illinois Public Aid 14 Code, the Illinois Department of Public Aid, within 7 days, 15 (i) of the name and address of any new employer of the 16 obligor, (ii) whether the obligor has access to health 17 insurance coverage through the employer or other group 18 coverage and, if so, the policy name and number and the names 19 of persons covered under the policy, and (iii) of any new 20 residential or mailing address or telephone number of the 21 non-custodial parent. In any subsequent action to enforce a 22 support order, upon a sufficient showing that a diligent 23 effort has been made to ascertain the location of the 24 non-custodial parent, service of process or provision of 25 notice necessary in the case may be made at the last known 26 address of the non-custodial parent in any manner expressly 27 provided by the Code of Civil Procedure or this Act, which 28 service shall be sufficient for purposes of due process. 29 (g) An order for support shall include a date on which 30 the current support obligation terminates. The termination 31 date shall be no earlier than the date on which the child 32 covered by the order will attain the age of majority or is 33 otherwise emancipated. The order for support shall state that 34 the termination date does not apply to any arrearage that may -10- LRB9208130DJmg 1 remain unpaid on that date. Nothing in this subsection shall 2 be construed to prevent the court from modifying the order. 3 (h) An order entered under this Section shall include a 4 provision requiring the obligor to report to the obligee and 5 to the clerk of court within 10 days each time the obligor 6 obtains new employment, and each time the obligor's 7 employment is terminated for any reason. The report shall be 8 in writing and shall, in the case of new employment, include 9 the name and address of the new employer. Failure to report 10 new employment or the termination of current employment, if 11 coupled with nonpayment of support for a period in excess of 12 60 days, is indirect criminal contempt. For any obligor 13 arrested for failure to report new employment bond shall be 14 set in the amount of the child support that should have been 15 paid during the period of unreported employment. An order 16 entered under this Section shall also include a provision 17 requiring the obligor and obligee parents to advise each 18 other of a change in residence within 5 days of the change 19 except when the court finds that the physical, mental, or 20 emotional health of a party or that of a minor child, or 21 both, would be seriously endangered by disclosure of the 22 party's address. 23 (Source: P.A. 90-18, eff. 7-1-97; 90-476, eff. 1-1-98; 24 90-539, eff. 6-1-98; 90-655, eff. 7-30-98; 90-733, eff. 25 8-11-98; 91-113, eff. 7-15-99; 91-397, eff. 1-1-00; 91-655, 26 eff. 6-1-00; 91-767, eff. 6-9-00; revised 6-28-00.) 27 Section 99. Effective date. This Act takes effect upon 28 becoming law.